Sporting nationality: remarks on the relationship between the general legal nationality of a person and his 'sporting nationality' *.

• Author: de Groot, Gerard-Renee

1. Function and definition of nationality

   Nationality is both in international and in national law an important connecting factor for the attribution of rights and duties to individual persons and States. Under international law States have e.g. the right to grant diplomatic protection to persons who possess their nationality (Donner 1983). Under national law the obligation to fulfil military service and the rights to become a member of parliament or to have high political functions are frequently linked to the possession of the nationality of the country involved. However, there is no standard list of duties and rights which normally are linked to the nationality of a State under national and international law (de Groot 1989, 13-15; Makarov 1962, 30, 31; Wiessner 1989). National States are in principle autonomous in their decision which rights and duties will be connected to the possession of nationality, whereas under international law the consequences of the possession of a nationality are also subject of discussion (van Panhuys 1959). In sports the possession of the nationality of a certain State is--inter alia--of paramount importance in order to be qualified to represent this State in international competitions between athletes (Van den Bogaert 2005, 321-389.).

   Nationality can be defined as 'the legal bond between a person and a State'. This definition is, inter alia, given in Art. 2 (a) of the European Convention on Nationality (Strasbourg 1997). Art. 2 (a) immediately adds the words "and does not indicate the person's ethnic origin". In other words, nationality is a legal concept and not a sociological or ethnical concept. The nationality of a country in this legal sense (hereinafter: general legal nationality) is acquired or lost on the basis of a nationality statute (de Groot 1989, 10-12; Makarov 1962, 12-19). For example, a person possesses Netherlands nationality if he or she possesses this nationality by virtue of the general Netherlands nationality statute, i.e. the 1984 Rijkswet op het Nederlanderschap or other relevant legislation, rules of implementation, case law and legal practice.

2. The term 'nationality'

   The word 'nationality' is etymologically derived from the Latin word 'natio' (nation). A difficulty is that 'nation' can nowadays be used as a synonym for 'State', but also in order to refer to a 'people' in a sociological or ethnical sense. In the context of international and national law the word 'nationality' refers to the legal bond with the 'nation' as State, but in many languages words etymologically related to nationality are (or can be) used for the indication of the ethnicity of persons (e.g. 'Nationalitat' in the German language) (de Groot 2003b, 6-10).

   A second difficulty is the relationship between the concepts 'nationality' and 'citizenship'. 'Nationality' expresses a person's legal bond with a particular State; 'citizenship' implies, inter alia, enabling an individual to actively participate in the constitutional life of that State. Often, the entitlement to citizenship rights and nationality coincide in practice. However, not everyone who possesses the nationality of a particular State also enjoys full citizenship rights of that State; small children may possess the nationality of a State, but they are not yet entitled to exercise citizenship rights. The opposite occurs as well: persons who are not nationals of a particular State may nevertheless be granted specific rights to participate in the constitutional life of that State. In some countries, for example, subject to certain conditions non-'nationals' are entitled to vote and be elected in local (municipalities) elections.

   In the English language, the relationship between the two terms 'nationality' and 'citizenship' is even complicated in the context of nationality law itself. In the United Kingdom, the term 'nationality' is used to indicate the formal link between a person and the State. The statute that regulates this status is the British Nationality Act 1981. The most privileged status to be acquired under this Act, however, is the status of "British citizen". Other statuses are: British Overseas Territories Citizen, British Overseas Citizen, British Subject without Citizenship and British Protected Person. In Ireland, it is the Irish Nationality and Citizenship Act 1956 that regulates who precisely possess Irish citizenship. In the United States, the Immigration and Nationality Act 1952 regulates who is an American citizen, but the Act also provides that the inhabitants of American Samoa and Swains Island have the status of American national without citizenship (Section 308; 8 U.S.C. 1408).

   Also within several other languages a complicated relationship between terms for nationality (in the sense of a bond with the State) and citizenship can be observed. Compare e.g. Dutch: nationaliteit-burgerschap; French: nationalite-citoyennete (see on these terms Guiguet 1997), German: Staatsangehorigkeit-Burgerschaft (see Grawert 1973, 164-174), Portuguese: nacionalidade-cidadania; Spanish: nacionalidad-ciudadania. But in again several other languages only one term is used for both 'nationality' and 'citizenship' (e.g. Polish: obywatelstwo; Italian: cittadinanza; Swedish: medborgarskap), but frequently in those languages another word exists which indicates the nationality in ethnical sense (Italian: nazionalita; Polish: narodowosc; Swedish: nationalitet).

3. General versus functional nationality

   When international law refers to nationality, this reference has to be read as a reference to the general legal nationality of a State, acquired on the basis of a ground for acquisition provided by the statute on nationality of the State involved. This is e.g. the case, where art. 15 of the Universal Declaration of Human Rights states, that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

   Next to this general legal nationality which indicates the formal legal bond between a person and a State, States or International Organisations may--for special purposes -develop a so-called 'functional nationality" or "autonomous nationality" (Makarov 1962, 13-17; van Panhuys 1959, 140,141). If for certain purposes a functional nationality is introduced, the grounds for acquisition and loss of this specific functional nationality have to be defined in detail.

   In this contribution, the question has to be answered whether the development of a functional autonomous sporting nationality is desirable? In principle, a negative answer of this question is advisable. The regulation of these grounds for acquisition and loss of such a functional nationality is a very complicated task, if one does not want to use simply the place of birth as the only ground for acquisition of the functional nationality without any ground for loss of the functional nationality involved. Even the fiction that one is deemed to have the nationality of the country where one has ordinary residence needs considerable further elaboration, because of the fact that the definition of residence differs from country to country.

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   However, there is an attractive alternative for the development of a functional nationality, which comes quite close to an own sporting nationality, but is in fact not an independent notion and which does not require to regulate the grounds for acquisition and loss in detail. One could for the determination, whether a person qualifies to represent a certain State in international sporting competitions use as a basic requirement the possession of the general legal nationality of the country involved, but add--insofar as it is desirable--additional requirements which guarantee that the nationality is the manifestation of a genuine link between the person and the State involved. The essential questions are then of course, which additional requirement(s) should be added and in which cases these additional requirement(s) should be fulfilled?

   If one uses the general legal nationality as a basic requirement for the eligibility of persons to represent a country in international sporting competitions, it is appropriate to pay special attention to the position of stateless persons and refugees. These persons should be eligible as representatives of their country of residence as a consequence of the Geneva Convention relating to the status of refugees (1951), respectively of the New York Convention relating to the status of stateless persons (1954) (compare art. 12 (1) of these conventions).

4. Genuine link

   The reason to add--in certain cases--(an) additional requirement(s) next to the condition of the possession of the nationality of the country involved, before a person qualifies to represent a country in international sporting competitions, is in order to ensure that a real, genuine link exists between the athlete involved and the country which he wants to represent. However, one has to realise that the general legal nationality normally is already a manifestation of such a genuine link. With other words: normally the general, legal nationality is only attributed, if a genuine link exists between the person involved and the State in question.

   The expressions 'genuine link' or 'genuine connection' refer implicitly to the Nottebohm decision of the International Court of Justice (ICJ Reports 1955, 4 (23)). The Court concluded in that case in respect to the naturalisation of mr Nottebohm by the State of Liechtenstein:

   "... a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual's genuine connection with the State which assumes the defence of its citizens by means of protection as against other States."

   However, this decision does not deal with the validity of the conferment...